Hospitals
Continued From Page 15
government perceived to be
unchecked purchasing and contract administration practises
was to introduce legislation and
issue binding directives. In late
October 2010 the government
introduced an Act to increase the
financial accountability of organizations in the broader public
sector (Bill 122) and by Dec. 8,
2010 it had received royal assent.
The key components of Bill 122
are now in force.
Bill 122 prohibits the spending of public money on lobbyists,
but it goes much further. It
imposes public reporting obligations on hospitals and LHINs on
the use of consultants and
expenses and gives government
the authority to implement directives on expenses and procurement practices.
Earlier this year, Ontario’s
Management Board of Cabinet
issued an expense directive out-
lining the types of expenses that
hospitals would be permitted to
reimburse. A strict regime of
accountability was imposed by
these directives in order to meet
its accountability and transpar-
ency objectives. Notably, the
expense directive states that in no
circumstances can consultants
and other contractors be reim-
bursed for laundry or dry clean-
ing, valet services or costs for the
care of their dependents.
Mandatory requirement 16
states that the contract must be
finalized using the form of agreement that was released with the
procurement documents, except
where an “alternative procurement strategy (whatever that
means) has been used.” This is
an extremely onerous obligation.
Very few public authorities in
Canada, including the largest
public spenders, include the
resulting contract in their
solicitation documents, preferring to negotiate those terms
and conditions once the winning
bidder is identified.
According to mandatory
requirement 25, procuring entities are required to outline a bid
dispute resolution procedure to
ensure that any dispute is handled in an ethical, fair, reasonable
and timely fashion. The bid dispute resolution procedures must
comply with those procedures set
out in the applicable trade agreements noted above. However, as
anyone who has looked at the bid
dispute resolution procedures in
the trade agreements will know,
they are as unworkable as they
are impractical.
The procurement directives
preserve all of the exemptions
and exclusions of coverage that
are found in the trade agree-
ments. Consequently, covered
entities can still avoid competi-
tive processes for some purchases
of goods and services (including
legal services).
Yves Ménard and Gerry Stobo
are both partners in the Ottawa
office of Borden Ladner Gervais
LLP. Yves practises in the real
estate, corporate/commercial and
education law fields with an
emphasis on procurement. Gerry’s
practice specializes in government
contracting and procurement law.
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suit against the state health
department (Beleno v. Tex. Dept.
of State Health Services) was settled on the condition that the
state would destroy over five million stored blood spot cards and
provide public disclosure of
research projects conducted using
stored samples.
Following that settlement, a
new action was filed alleging the
health department had unlawfully transferred blood samples to
a federal law enforcement data-bank and sold them to pharmaceutical companies.
In Minnesota, a group of parents also challenged non-consen-sual retention and use of newborn samples as a violation of the
state’s Genetic Privacy Act. The
courts ruled, however, that the
state’s public health powers to
conduct a newborn screening
program prevail over the statutory genetic privacy protections
(Bearder v. Minnesota).
Implications for biobanks
The B.C. claim, while centred
factually on newborn screening,
raises broader tensions between
consent and privacy interests and
public health and research inter-
ests. This tension arises equally in
the context of other biorepositories.
Openness and choice
There has been a recent trend
in health organizations to analyze the privacy impacts of their
programs, be more transparent
about how personal information
is handled and give individuals
opportunities to make choices
about their information. These
are all positive developments.
Challenges arise, however, in
responding to privacy complaints about databases and
biobanks that were established
in the past without much, or
any, individual or public awareness. These repositories often
serve valuable health purposes,
but privacy interests must also
be safeguarded. n
Nola Ries is a research associate
with the Health Law Institute,
University of Alberta. She is also
the recipient of the Canadian Blood
Services’ James Kreppner Fellowship in Blood System Studies.
